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An order compelling a parent to permit a child to visit a grandparent implicates the parent’s fundamental “right to family autonomy and privacy.” Moriarty v. Bradt, 177 N.J. 84, 116 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004). Accordingly, there is a presumption favoring deference to a fit parent’s choice about visitation which must be overcome before the court may enter an order requiring visitation with grandparents on the ground that it would be in the child’s best interest. Id. at 115, 117.

A grandparent must establish, by a preponderance of the evidence, “exceptional circumstances” warranting the interference. Id. at 114, 117. A grandparent may meet that burden by demonstrating that he or she has become a psychological parent to the child and stands in the shoes of a parent. Id. at 113-16, 116 n.3; see, e.g., V.C. v. M.J.B., 163 N.J. 200, 221-28 (2000) (discussing the significance of the role played by a parent’s partner), cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000). Or, a grandparent may satisfy the burden and entitlement to an order “forc[ing] grandparent visitation over the wishes of a fit parent” by showing that the “visitation is necessary to avoid harm to the child.” Moriarty, supra, 177 N.J. at 115, 117.

Moriarty provides guidance for assessing the adequacy of the evidence of potential harm. Id. at 115-18. The “evidence can be expert or factual.” Id. at 117. “[T]he termination of a long-standing relationship between the grandparents and the child, with expert testimony assessing the effect of those circumstances, [can] form the basis for a finding of harm.” Ibid. And, grandparents also “may rely on the death of a parent” to establish the harm. Ibid. Thus, “harm of the type recognized in Moriarty generally rests on the existence of an unusually close relationship between the grandparent and the child, or on traumatic circumstances such as a parent’s death.” Daniels v. Daniels, 381 N.J. Super. 286, 294 (App. Div. 2005).

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A grandparent may force visitation over the wishes of a fit parent by demonstrating exceptional circumstances whereby he or she has become a psychological parent to the child and stands in the shoes of a parent originally appeared on NJ Family Issues on September 29, 2009.

Because the Grandparent Visitation Statute (GVS), N.J.S.A. 9:2-7.1, is an incursion on a fundamental right of the parent, our Supreme Court has held that “the only state interest warranting the invocation of the State’s parens patriae jurisdiction to overcome the presumption in favor of a parent’s decision and to force grandparent visitation over the wishes of a fit parent is the avoidance of harm to the child.” Moriarty v. Bradt, 177 N.J. 84, 114-15 (2003). In Moriarty the Court held that grandparents will only be given visitation against the wishes of a parent if they can prove by a preponderance of the evidence that such visitation is necessary to avoid harm to the child. Id. at ll7.

In Mizrahi v. Cannon, 375 N.J. Super. 221 (App. Div. 2005), the Court held that:
[grandparents] must establish that denying visitation would wreak a particular identifiable harm, specific to the child, to justify interference with a parent’s fundamental due process right to raise a child free from judicial interference and supervision. Conclusory, generic items, such as “loss of potentially happy memories,” are not a sufficient basis to warrant such an intrusion into a parent’s decision making.
[Id. at 234.]

The harm can be demonstrated by factual or expert evidence. Moriarty, 177 N.J. at ll7. Such testimony can include evidence of a longstanding relationship between the grandparents and the child, with expert testimony assessing the effect of the termination of such relationship. Ibid. Moreover, the trial court has the discretion to appoint a medical expert if it believes the expert will assist it in disposing of an issue in dispute. R. 5:3-3(a). The expert’s report must be submitted to the court and parties, and the parties are entitled a reasonable opportunity to conduct discovery of the expert. R. 5:3-3(f). Moreover, the court-appointed expert is subject to cross-examination. R. 5:3-3(g).

Only after the court finds the potential for harm has been shown and the presumption in favor of parental decision-making has been overcome, should the court review and approve a visitation schedule that it determines is in the child’s best interest, based on the applicable statutory factors. See N.J.S.A. 9:2-7.1b (listing statutory factors); Moriarty, 177 N.J. at 117. And when visitation is not denied outright but the grandparents challenge the sufficiency of the proffered schedule, the same standard is applied. Moriarty, 177 N.J. at ll8. They are required to prove that visitation is necessary and the schedule offered by the parent is inadequate to avoid harm to the child. Ibid. Only after the court determines the grandparents’ proofs are sufficient to overcome the presumption in favor of parental decision-making, should it proceed to the next step and direct a visitation schedule that is in the child’s best interests based on the statutory factors. Ibid.

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Only after the court determines the grandparents’ proofs are sufficient to overcome the presumption in favor of parental decision-making, should it proceed to the next step and direct a visitation schedule that is in the child’s best interests originally appeared on NJ Family Issues on February 15, 2007.

Under Filippone v. Lee, 304 N.J. Super. 301, 308-09 (App. Div. 1997), a minor cannot be considered emancipated by virtue of the birth of a child. Nevertheless, generally, a grandparent has no legal obligation to support a grandchild. There are exceptions when the grandparent obtains legal custody or guardianship or where the grandparent otherwise acts in loco parentis. See, e.g., Watkins v. Nelson, 163 N.J. 235, 253-54 (2000); Savoie v. Savoie, 245 N.J. Super. 1, 4 (App. Div. 1990). However, where no recognized exception applies, a grandparent/parent cannot be compelled to support the offspring of his unemancipated child. Savoie, supra, 245 N.J. Super. at 4; cf. Miller v. Miller, 97 N.J. 154, 158-62 (1984) (regarding step parents); see also Troxel v. Granville, U.S. , 120 S. Ct. 2054, L. Ed.2d (2000) (stating that grandparents have no right of visitation over objection of surviving parent).

N.J.S.A. 44:4-101 requires the father and mother of a child under eighteen who receives public assistance to maintain the child if they have sufficient ability. The statute also requires the children of a parent who receives public assistance to maintain the parent. Ibid. The statute further requires the spouse of one who receives public assistance to maintain the recipient spouse. Ibid. But the statute does not require grandparents to maintain grandchildren.

N.J.S.A. 44:1-140 parallels N.J.S.A. 44:4-101 with respect to municipal, county or joint welfare assistance. N.J.S.A. 44:1-140 requires that parents be responsible for the support of their children until 18 years of age. Significantly, that statute, as it stood prior to 1975, also placed the obligation on grandparents. In 1975 that obligation was eliminated. See Savoie, supra, 245 N.J. Super. at 5.

In this case, the court declined to find, in the absence of any legislative policy to support it, any obligation of a non custodial grandparent to support a grandchild, and this is so even though the grandchild is the offspring of an unemancipated minor.

The court further held that the “doctrine of necessaries” cannot be used to defeat the principle that a grandparent has no duty to support his non-custodial grandchild. The doctrine applies to parents and their children, not to grandparents and their non-custodial grandchildren. See Greenspan v. Slate, 12 N.J. 426, 430 (1953) (finding that “parents of an infant child are liable [to a medical doctor], in the absence of a contract, express or implied in fact, for necessaries furnished their child in an emergency”).

Nevertheless, in this case, the grandparent/parent may have an obligation of support under the unique facts of the case, which flow from the grandparent/parent’s own, independent responsibilities and decision making. Where the grandparent/parent did not want his son to be employed in order that he could improve, or at least maintain, his grades. Consequently, the grandparent’s son’s only income was his weekly allowance, and therefore was prevented from earning more income. See Halliwell v. Halliwell, 326 N.J. Super. 442, 448 (App. Div. 1999) (holding that “[t]he potential earning capacity of an individual, not his or her actual income, should be considered when determining the amount a supporting party must pay”). Hence, the limitations on the son’s ability to earn income is directly attributable to the grandparent’s own act and decision making. By exercising his parental discretion, which he had every right to do, it was foreseeable that the grandparent’s decision to prevent his son from increasing his income was also reducing the son’s ability to support his child, to the detriment of the grandchild. See, e.g., J.S. v. R.T.H., 155 N.J. 330, 337-39, 352 (1998); Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 502 (1997).

Having limited the son’s ability to earn income, the grandparent must be responsible for the consequences of his own decision. Stated differently, after considering the son’s age and school obligations, the trial judge should impute income that the son could earn but for his father’s directions to the contrary, and the judge should direct the grandparent to pay the difference between the imputed amount and the amount that the son can afford to pay.

See related Blog Post, by Fox Rothschild LLP.

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Generally, a grandparent has no legal obligation to support a grandchild; BUT … originally appeared on NJ Family Issues on August 1, 2000.